State v. Rennison

• Decision Date: 31 December 1924
• Docket Number: No. 25615.,25615.
• Parties: STATE v. RENNISON et al.
• Court: Missouri Supreme Court

267 S.W. 850

STATE v. RENNISON et al.

No. 25615.

Supreme Court of Missouri, Division No. 2.

December 31, 1924.

Appeal from Circuit Court, Lafayette County; R. M. Reynolds, Judge.

Rupert Rennison and another were convicted of murder in the second degree, and they appeal. Reversed and remanded.

W. D. Steele, of Sedalia, W. H. Meschede, of Marshall, A. L. Shortridge, of Sedalia, W. V. Draffen, of Boonville, Aull & Aull, of Lexington, and D. E. Kennedy, of Sedalia, for appellants.

Jesse W. Barrett, Atty. Gen., and William L. Vandeventer, Sp. Asst. Atty. Gen., for the State.

HIGBEE, C.

On September 18, 1922, the prosecuting attorney of Saline county filed an information in the circuit court of said county, charging that

"One Rupert Rennison and Charles Rennison. on the 21st day of May, 1922, at said county of Saline, in the state of Missouri, did then and there unlawfully, in and upon one William Jobe, then and there being, feloniously, willfully, deliberately, premeditatedly, and of their malice aforethought, make an assault, and with a deadly weapon, to wit, a pistol, then and there loaded with gunpowder and leaden balls, which the said Rupert Rennison then and there had and held, did then and there feloniously, on purpose, and of their malice aforethought, willfully, deliberately, and premeditatedly shoot and strike him, the said William Jobe, then and there with the deadly weapon, to wit, the pistol aforesaid, and the gunpowder, and leaden balls aforesaid, giving to him, the said William Jobe, one mortal wound, of which said mortal wound the said William Jobe then and there died, against the peace and dignity of the state."

This was signed and duly verified by the prosecuting attorney. A change of venue was thereafter awarded to the circuit court of Lafayette county, and the case was tried at the April term, 1923, of said court. The jury found each of the defendants guilty of murder in the second degree, and assessed the punishment of Charles Rennison at 10 years in the penitentiary and that of Rupert Rennison at 20 years. After motions for new trial and in arrest were overruled, the defendants were duly sentenced and appealed therefrom.

The evidence for the state tends to prove that William Jobe, a brother of Charles Rennison's wife, and C. C. Campbell went to the residence of appellants in the south part of Saline county, on Sunday, May 21, 1922, arriving there at about noon. Appellants were not at home. Jobe and Campbell ate dinner with the family, and about the time the meal was finished Charles Rennison and his son Rupert and Frank York drove up in the Rennison automobile and stopped in the public road. Appellants and York went to the barn, and Jobe and Campbell went out to the automobile. Ed. Rennison, another son of Charles Rennison, came to the car, and was introduced to Campbell by Mr. Jobe. At this time the appellants were sitting in the doorway of the barn, 100 feet or more distant from the automobile. Rupert called to Mr. Jobe to come to the.barn; called him twice, and accordingly Jobe went to the barn. Rupert said to Jobe: "You have my still." Jobe said he had not. Rupert "told him he knowed he had it up there in the upstairs of his house, and Jobe said he didn't, to go and see for himself." Rupert called Jobe vile names, and struck at him three times. Jobe stepped back, saying there was no use in having any trouble. Charles Rennison then struck several blows at Jobe, and Jobe knocked him down. Charles Rennison said to Rupert, "Put it to the s___ o___ b___, shoot him." Thereupon Rupert shot Jobe twice in quick succession. Jobe went into the barn, where he was found dead, lying on the floor. He was 47 years of age. There were two gunshot wounds, one near the left nipple, the other four or five inches below it.

The evidence for the defense, as summarized in the statement and brief of the Attorney General, is :

"The evidence for the appellants tended to show that they did not invite the deceased to come up to the barn; that he came up there of his own volition, started the trouble himself, knocked Charley Rennison down, and was standing over him with a drawn revolver, kicking him; that Rupert Rennison asked him to desist, whereupon deceased fired a shot at Rupert Rennison, who immediately shot deceased twice, which shots resulted in his death: that the shots of Rupert Rennison were fired in self-defense."

The sufficiency of the information is challenged by the motions in arrest.

1. It has been uniformly held in this state that it is the formal conclusion of an indictment or information for murder that distinguishes it from manslaughter. In

"The first point presented for our consideration on this appeal is with respect to the sufficiency of the information, which defendant claims is bad because it does not conclude as required in case of homicide prosecuted by indictment. The information concludes as follows: 'And so the said James P. Boyd, prosecuting attorney of and within and for the county of Monroe and state of Missouri as aforesaid, does inform the court aforesaid that he the said Frank Dawson, her, the said Anna "Hartman; in the manner and by the means aforesaid, feloniously, willfully, premeditatedly, deliberately, on purpose, and of his malice aforethought, at and in the said county of Monroe and state of Missouri, on the said 4th day of December, A. D. 1903, did kill and murder, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state,' but omits to allege that the said James P. Boyd, prosecuting attorney of and within and for the county of Monroe and state of Missouri as aforesaid, `upon his oath aforesaid,' does inform the court aforesaid, etc.

"The contention is that the crime charged in the information is nothing more than manslaughter. In the case of the State v. Meyers, 99 Mo. 107, it is held that the conclusion of a count of an indictment for murder is just as essential as other portions of the count, and the concluding charge in such case should be by the grand jurors upon their oaths; otherwise, the previous words of the indictment will charge only manslaughter.

"The same rule is announced in State v. Furgerson, "152 Mo. 92; State v. Sanders, 158 Mo. 610.

"In State v. Cook and Frogge, 170 Mo. 210', Gantt, J., in speaking for the court, said: "'The indictment is not sufficient to sustain a conviction of murder. The indictment only charges manslaughter. As was ruled in State v. Sanders, 158 Mo. 1. c. 612, an indictment under our Constitution means just what it did at common law. Ex parte Slater, 72 Mo. 102; State v. Meyers, 99 Mo. 116. At common law it was essential to an indictment for murder that it should state, "and so the grand jurors, or jurors, aforesaid, upon their oath" do say, etc. Heydon's Case, 4 Coke, 41 b; 3 Chitty's Crim. Law, 750; Wharton's Homicide, 49. And an indictment for murder without these words is fatally defective. State v. Furgerson, 152 Mo. 98.'

"If, as we have said, an indictment for murder at common law was not good unless it concluded as we have intimated, there can be no reason why the same rule should not apply to prosecutions for murder by information, for if, as said in the Meyers Case, the proper conclusion of an indictment for murder marks the feature of the offense which distinguishes it from manslaughter, the same distinguishing feature clearly applies to both indictments and informations for murder. State v. Coleman, 186 Mo. 151, and State v. Atchley, 186 Mo. 174."

Brace, C. J., Marshall, Gantt, Valliant, Fox, and Lamm, JJ., concurred in this opinion. State v. Dawson was cited and approved in State v. Morgan, 196 Mo. 177, 95 S. W. 402, 7 Ann. Cas. 107. In State v. Cline, 264 Mo. 416, 418, 175 S. W. 184, 185, the court said :

"It is contended by appellant that the information is defective in that the conclusion of the information fails to state the name of the person murdered. The portion of the information thus attacked is as follows: `And so the prosecuting attorney aforesaid, upon his official oath aforesaid, doth say, that the said Willis Cline, at the county and state aforesaid, in the manner and by the means aforesaid, feloniously, willfully, deliberately, premeditatedly, on purpose, and of his malice aforethought did kill and murder; against the peace and dignity of the state.' The common-law form of indictment for murder requires that the name of the person murdered be stated in the conclusion of the indictment. State v. Meyers, 99 Mo. 107, 1. c. 115, and authorities therein cited. 'At common law great strictness and technical accuracy was exacted as to the conclusion of the indictment for murder.' 21 Cyc. 858. The reason for this, no doubt, was that, `All the authorities show the proper conclusion of an indictment for murder marks the feature of that offense which distinguishes it from manslaughter.' State v. Meyers, supra. Absent a constitutional provision or proper legislative enactment prescribing or permitting a different form, the forms of...